Citation Nr: A21020362 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 210114-129680 DATE: December 21, 2021 ORDER Entitlement to restoration of a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT 1. In a November 2020 rating decision, the AOJ reduced the Veteran's rating for PTSD from 70 percent to 50 percent, effective February 1, 2021, based on improvement in mental health symptoms. 2. At the time of the effective date of reduction, the 70 percent rating for the Veteran's PTSD had been in effect since January 2017, which was less than five years. 3. The evidence of record at the time of the November 2020 rating decision did not indicate that the service-connected PTSD had undergone a material improvement to the point that the Veteran was better able to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 70 percent evaluation for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 1988 to October 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), which reduced the evaluation for PTSD from 70 percent to 50 percent, effective February 1, 2021. In his January 2021 Notice of Disagreement, the Veteran elected an appeal to the Board, using the direct review docket. 38 C.F.R. § 20.202. Under direct review, no development may be undertaken; the undersigned considers the same record as the AOJ in rendering a decision. 38 C.F.R. § 20.301. The Veteran's PTSD is rated under Diagnostic Code 9411 as 70 percent disabling, effective January 19, 2017, and 50 percent disabling, effective February 1, 2021. 38 C.F.R. § 4.130. In rating reductions, when VA contemplates reducing an evaluation for a Veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), "[w]here the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons." Id. In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." Id. The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing," 38 C.F.R. § 3.105(i), and thereafter, a "final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires." See 38 C.F.R. §§ 3.105(e); 3.500(r). A Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In addition to satisfying the procedures outlined above, the AOJ must gather evidence to establish that a rating reduction is proper. Pertinent to the instant case, according to 38 C.F.R. § 3.344(c), where a rating or ratings have been in effect for less than five years, as here, "[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c); see also Brown v. Brown, 5 Vet. App. 413, 417 (1993) (holding that five-year period in § 3.344(c) is to be measured from effective date of rating not from date of AOJ decision assigning that rating). In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Where the reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a net reduction of compensation payments currently being made, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his proper address of record of the contemplated action, furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(e). The Veteran has not argued, and the evidence of record does not show, a failure of compliance with the due process requirements of 38 C.F.R. § 3.105(e). Therefore, the Board will proceed with its decision on the merits. The Veteran's PTSD is rated under Diagnostic Code 9411 and evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.30. The General Rating Formula for Mental Disorders provides that a 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the Veteran's level of impairment in "most areas" for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition of similar type and degree that affect the level of occupational and social impairment. Id. The evidence of record reflects that the Veteran was afforded a VA examination in June 2017. The Veteran reported that he was stationed at the Pentagon on September 11, 2001, and experienced increasing symptoms of PTSD which interfered with all aspects of his life. He further endorsed social avoidance, irritability, anger issues, avoidance of crowds, intrusive thoughts, nightmares, and night sweats. The VA examiner indicated that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships. Upon mental status examination, the Veteran appeared appropriately dressed, relaxed, and cooperative, but also sad. It was noted that the Veteran was fully oriented, displayed no odd or unusual behaviors, maintained good eye contact, had normal speech, good insight, and was motivated to address the impact of his symptoms on his life and career. The VA examiner opined that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Thereafter, the Veteran was afforded a VA examination in September 2020. The Veteran endorsed reliving traumatic events through periodic nightmares once to twice a month with insomnia; intense physiological and psychological distress in presence of cues associated with traumatic events, to include large crowds or heavy traffic; persistent dysphoric mood with periods of intense agitation and anxiety, frequently depressed mood hallmarked by sadness, anhedonia, reduced energy, periods of hopelessness, isolative behavior, loss of interest in usual activities, decreased libido, and reduced motivation and irritability; limited frustration tolerance; frequent anger outbursts, including six broken telephones and other property damage in his house due to anger; suspiciousness and not trusting of others; panic attacks; persistent scanning behavior and startle response; disrupted sleep; reduced concentration, difficulty utilizing sustained attention, and reduced memory; and no suicidal ideation or homicidal ideation in active or passive forms. The Veteran reported that he was currently married, but separated from his wife and resided alone. The Veteran stated that his current family relationships were often conflicted due to alcohol use and PTSD. He recounted that his wife once called law enforcement when he grabbed a firearm during an argument. He further reported that he no longer socialized with his friends or engaged in his former hobbies and interests. He noted that he was currently employed by VA but often called in sick for work on days he was too aggravated or too tired to cope with work stress. The Veteran further endorsed persistent anxiety on the job. The VA examiner opined that the Veteran has symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. On mental status examination, the Veteran appeared neatly groomed with good hygiene, fully oriented, and cooperative. The Veteran further displayed normal eye contact, unremarkable motor coordination, mildly dysphoric affect, congruent mood, normal speech and receptive language, logical and goal-directed thought processes, appropriate thought content with no perceptual disturbances, and intact insight and judgment. The VA examiner opined that the Veteran has an occupational and social impairment with reduced reliability and productivity. The Board finds that the preponderance of the evidence reflects that the reduction of the Veteran's PTSD rating from 70 to 50 percent disabling, effective February 1, 2021, was not proper. Competent and credible reports reveal that the Veteran did not experience improvement in the ordinary conditions of life, meaning his actual functional capacity did not improve. Based upon the evidence of record, the Board finds that the disability picture continues to more nearly approximate the level of severity contemplated by a 70 percent rating, which contemplates impairment in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. There is probative evidence, including VA examination reports, and the Veteran's lay statements, to suggest that actual, sustained improvement in the Veteran's PTSD under the ordinary conditions of life did not occur. 38 C.F.R. § 3.344(a). The rating reduction appears based on the symptoms reported by the VA examiner in his September 2020 report. Nevertheless, the Veteran's reported lay symptoms and functional effects at the September 2020 VA examination have been consistent since service connection was granted. Thus, the nature of the Veteran's PTSD symptoms has not improved to a degree that shows sustained, material improvement in his overall condition. Given the consistency of symptoms, and their impact on his overall condition, there has been no actual functional change. Restoration of the 70 percent rating for PTSD is therefore warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.